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Post by nickd on Dec 8, 2012 0:18:43 GMT 1
Going through 'migration' from incapacity benefits to ESA? I would really appreciate your help...
I would be very interested to hear the views of those who have undergone or who are awaiting the 'migration' of their pre-existing Incapacity Benefit, Income Support claimed on the grounds of incapacity & Severe Disablement Allowance claims over to Employment & Support Allowance.
The reason I'm interested is because I am currently in the midst of legally challenging this under what is known as the 'lead case' Tribunal procedural ruling which allows us to raise a 'point of law' which arises in two or more first - tier tribunal cases. It's not an Upper Tribunal procedure ( we have these on the go as well ) but essentially it allows us to ask a senior judge to rule on an area of law or common mistake as to fact and then apply for the ruling to be applied to other cases which we can tie to the 'lead case'.
It's complicated but essentially the issue is this.
(1) In a NEW claim for ESA you are asked to provide medical evidence from your own doctor from the very beginning of your claim because you initially enter the 'assessment phase'. It is a condition of your entitlement that you supply up to date medical certificates until a decision is made over whether you are entitled to a placement in the 'main phase' of ESA in either the Work Related Activity Group or Support Group. Before a decision is made the claimant is usually assessed under the 'Work Capability Assessment' conducted by Atos. As part of the process most claimants have to complete an ESA 50 questionnaire.
Whereas:
(2) In a 'conversion' or migration case it is different.
The steps in the process are as follows:
(a) You will be sent a 'conversion' notice telling you about the migration.
(b) You will be sent the ESA 50
(c) You will normally have to attend a Work Capability Assessment
(d) A formal 'conversion' decision is made which determines whether your pre-existing award of benefit can be converted in to an ESA award and you will then be told whether you go into the Work Related Activity Group, Support Group or you may be told you do not qualify in which case you are told your existing award will be terminated on a given date.
Legal issues
It is my contention that it wrong to treat new claims differently to conversion claims because in a new claim the claimant is required to ask their doctor to provide sick notes before the claimant is assessed by Atos. Since April 2010 all GP's have to consider when writing out a sick note (or MED 3) whether their patient is (1) Unfit for work or could do some work but with (i) altered hours (ii) a phased return (iii) amended duties or (iv) with workplace adaptations. The doctor has therefore already considered the question of 'limited capability for work'. This is important because the assessment phase for new claims is more equal than it is in conversion cases. The claimant is required to make contact with their doctor before they are assessed by Atos.
Whereas:
In a conversion case the claimant is not required to contact their doctor unless they appeal against the conversion 'decision' (not the notice); it is only if they appeal that they are then placed in the ESA 'assessment phase' which I say is too late because the claimant has already been assessed by Atos in the 'conversion' phase. In my contention I am arguing that this is unequal to the situation which exists with a new claim and deprives the claimant of a statutory requirement to make contact with their doctor before the formal conversion is made.
Bear in mind how many conversion claimants may not have seen their doctor under the old rules for some time because under incapacity legislation they will only have had to see their doctor to get 'signed off' at the beginning of the claim, after which they have been periodically assessed under the older rules relating to the 'personal capability assessment'.
This means that in longer term incapacity cases the claimant will not be required to discuss their problems over the preceding years with their doctor before they see Atos. If this happened a doctor may get a proper opportunity to remind the claimant to make sure the Atos healthcare professional is told about all of the problems they have experienced since they were originally signed off.
The reminder may help to ensure the claimant is better 'briefed' by a GP (who will have full access to all the patient's medical records) to tell Atos 'everything'.
What are your experiences?
In particular how long is the conversion process taking from when you get the notice until you get the decision and until your appeal comes up if you have to appeal?
In many cases the DWP say the claimant 'has no evidence' when they see Atos to which I'm arguing that the process does not require them to provide it.
A particular trend in long term incapacity cases is that a claimant may develop mental as well as physical problems because they have become increasingly isolated from those around them and from the medical profession because the DWP specifically never required them to make any contact. The only contact they will have been required to make is with the DWP in periodic checks.
Any thoughts on this anyone?
There are lots of other legal issues connected with being sent an ESA 50 and having to go for an ESA Work Capability Assessment when the claimant is still subject to the incapacity rules right up until the conversion decision but the above points are the ones I'm really interested in.
Remember I'm concerned only with the contact you were required to make with your doctor not any consultations you may have had of your own accord. The legal issue is connected with the 'requirement' clauses in the legislation.
Hope this isn't too difficult to follow for any of you but I've done my best to simplify some very complex arguments into what I hope is something which is easy to understand.
Many thanks! [/center] |
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Post by nickd on Dec 8, 2012 14:00:44 GMT 1
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Post by hamilton on Dec 22, 2012 15:16:19 GMT 1
nickd just got big brown envelope succesful ib toesa migration put in support group no atos assesment i cant thank you enough as i would not have been able to fill out esa50 as i did without the help of your site the full facts site and the black triangle.i would advise everyone to browse these sites as there is a lot of information in them especially how to use the descriptors to your advantage i will keep using your site as i will probably need help in the future.thanks again merry xmas
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Post by nickd on Dec 22, 2012 15:52:12 GMT 1
Hey that's brilliant news!
Merry Christmas!. One up on the relentless wicked welfare reforms!
Regards
Nick
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bjj12
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Post by bjj12 on Dec 27, 2012 1:12:23 GMT 1
Hi Nick. I have been on IB since being diagnosed with breast cancer in January 2005. About a month or 2 ago I received a letter from DWP stating that I was going to be put onto ESA. I was sent forms to fill in. My health has actually significantly deteriorated in the last few months as I now have fibromyalgia. Despite this being obvious by my comments on the form I have been placed in the WRAG group, There is no way I can work at the moment. I currently do "supported permitted work" for the NHS in mental health. I love doing this and it is in an extremely supportive environment. I have now been called for a "work-focused" interview in January. I phoned up the job centre and said that I have been doing "supported permitted work" for over a year and that I felt therefore that a "work focused" interview would not be helpful. I was told that I had to attend or be sanctioned. I fear that I might be put on the Workfare programme - this would be crazy. I am improving my skills at the moment and this could be detrimental if I ended up doing some ridiculous workfare task rather than the work that is actually helping me. I am happy to pass on any more info that might help you.
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Post by nickd on Dec 27, 2012 11:43:02 GMT 1
Hi bjj12,
Many thanks for joining and I'll try and answer your question.
Given that you have been placed in the ESA WRAG (Work Related Activity Group) you will need to attend the interview in January, the risk of sanction is too great if you do not attend. It only those in the support group who cannot become a mandatory conscription in to the beloved Work programme.
It may work out okay because I see no reason why you should be forced off your permitted work programme - they may be quite happy to allow you to continue this. Is it 12 months you have done at the 'higher earnings level' is something I would need to know?
It strikes me that you may be better off in the support group, take a good look at the post on the forum (ESA under the magnifying glass) and look to see if any of the descriptor questions for the support group apply to you?
Come back and tell me which ones?
How is you condition and what is the longer term prognosis? - I presume it is in remission and wonder how this affects you mentally as many fear it may return?
I think I would be tempted to find out more about upon which basis the DWP reached their decision to place you in the WRAG - you are entitled to a full explanation.
Tell me more and I shall see what I can recommend.
Regards
Nick
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bjj12
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Post by bjj12 on Dec 30, 2012 1:05:52 GMT 1
Dear Nick
Thank you very much for replying to my post - much appreciated. Sorry for the delay in responding - I have been unwell with a miserable bug. Far from ideal over Christmas!
I note your comments that I must attend the work-focused interview.
I have been in "supported permitted work" for about 18 months earning (some weeks) the maximum amount of £99.50 and other weeks nothing. My understanding is that as long as you are doing "supported permitted work" then you are allowed to earn the max amount indefinitely as opposed to "other work" where you have a time limit of 52 weeks before reverting to only earning £20 per week.
I feel that I should be in the support group rather than the WRAG Group - I will go and look at the thread that you suggest.
I am in remission at the moment - thank goodness - but unfortunately breast cancer is one of those miserable things that can lie dormant and pop back up years later. I also have had a pre-cancerous bowel polyp removed. There is a very strong history of cancer in my family so - yes, I do fear that it will return with avengence.
My daughter is also severely anorexic which causes a lot of stress and strain. I have been diagnosed with severe depression and have been on a waiting list for one-to-one therapy for about 8 months now. I did attend group therapy and the counsellors were so concerned about me that they phoned me at home to check that I was "ok". Hasn't exactly helped me get any help though.
Can I just write and ask DWP to explain fully why I have been put in the WRAG group? It makes no sense to me at all.
I am able to do "supported permitted work" because that is what is is - "supported" in a therapeutic environment. I would struggle to hold down any kind of unsupported work - in fact I am not sure that anyone would want me because of my physical and mental health problems.
Your help is very much appreciated.
Bjj
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Post by nickd on Dec 30, 2012 22:06:40 GMT 1
Hi bjj12, Thanks for getting back to me. I hope you have recovered a bit and managed to have a reasonable Christmas? What concerns me in these incapacity benefit IB) to ESA cases is whether claimants are getting what is know as their 'transitional protection'. Essentially it means certain rights they had under the IB rules which have to be transferred (providing they qualify for 'conversion') to their ESA award. Where this gets difficult is when a claimant gets less protection through being placed in the work related activity rather the support group. I checked the regulations on the supported permitted work but need to look at them in more detail (they are contained within the more complicated regulations surrounding conversion & transitional protection). However I note from the government site: www.gov.uk/employment-support-allowance/eligibilityThat supported permitted work is subject to a 52 week period. I am not clear (at the time of writing) that this was ever any longer than 52 weeks under the old rules. Did you have this confirmed to you in writing? I would also need to know whether you are on 'contributory' or 'income based' ESA to tell you what effect the earnings £99.50 may have upon your existing benefits, can you clarify this? To return to your original question, I think it best to attend and have a frank discussion with the adviser and tell them you think you should be in the support group. You can apply for this by asking for a 'supersession' of your existing award but only do so after getting specialist advice and after looking at the support group criteria to see which descriptors or criteria may apply; - you need to have a really good look at the mental and physical descriptors for the support group. By all means come to me once you've had a look? Doing some form of work can be perfectly valid even in the support group. It should not - but unfortunately often is - held against you. Asking for a full explanation is perfectly reasonable and indeed sensible to ask to see how the WRAG decision was made. Don't go in to too much detail and keep your request to a specific request: "Please provide me with a full written explanation as to how you placed me in the Work Related Activity Group rather than the Support Group" It strikes me with your daughter's condition it may also be appropriate to seek advice on Disability Living Allowance (do you claim this by the way?) and potentially Carer's Allowance as a separate issue - it definitely warrants exploration. Are there other family members? Are you able to see a benefit specialist in your locality? Hope this helps. Regards Nick |
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Post by nickd on Dec 30, 2012 22:35:19 GMT 1
Hi Floydpink,
The IB cases may still have a relevance to your claim, this is very much the thrust of the legal argument I have in these cases. The DWP take the line that once you are transferred to ESA you are only subject to ESA regulations. I dispute this for a number of reasons connected with the regulations but on a purely sensible point would argue:
How can a long term IB claimant's problems not be relevant to their current limited capability for work? - after all they represent the 'barriers to work' which a claimant needs to overcome if they are to be supported back in to work or in the alternative need to be considered in order to determine whether a claimant is completely unable to do any work at all.
It is very much my contention that it is wrong to disregard all factors relating to their previous claim.
It also falls to be determined as to whether 'protective case law' under previous legislation is a factor which needs to be considered when deciding whether a claimant is transitionally entitled to enjoy that previous level of protection when having their ib claim converted to ESA.
I think the DWP has rather chosen to disregard the kind of issues which this throws up!
Hope this helps answer your question?
Regards
Nick
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bjj12
New Member
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Post by bjj12 on Dec 31, 2012 11:48:05 GMT 1
Dear Nick You are a star! I cannot thank you enough for getting back to me. Supported Permitted work - under Incapacity Benefit rules this could go on indefinitely - the rules were quite clear on the JobCentrePlus website. This was also confirmed to me by the welfare advisor where I do supported permitted work. I have actually been doing this for about a year and a half. I am sure that I must have it it writing somewhere - I will dig it out. The website has changed (sneaky) so I can't find it online. I am quite horrified by this. I know a lot of people doing supported permitted work and this change of rules is going to affect so many of them. I think I am on contributory (NI based) ESA. It was definitely based on NI when I was on IB - there was a lot of confusion when I first tried to claim as I hadn't paid enough NI - as I was self-employed and also had dependent children I was able to pay enough NI back to get IB. Thank you for your advice regarding having a frank discussion with the adviser. I will go and look at all the mental and physical descriptors and get back to you... Thank you for your suggestion for wording re asking why on earth I was placed in the WRAG group - I will do that... My daughter has been on DLA for several years now and fairly recently I redid all the forms and her claim was fine and she will be on it for another 3 or 4 years. I was unable to claim Carer's Allowance whilst I was on IB. Apparently you cannot "care" for someone if you are on IB - if I wasn't doing the caring I would like to know who was!!! Carers UK state that you cannot normally claim Carer's allowance if you are on contributory ESA. www.carersuk.org/help-and-advice/help-with-money/benefits-a-tax-credits/carers-allowance/how-it-affects-other-benefitsI will get back to you when I have studied the descriptors. Thank you for all your help. Best wishes bjj12 |
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bjj12
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Post by bjj12 on Dec 31, 2012 13:01:18 GMT 1
Hi Nick
Further to my earlier posting. I phoned the Benefits Advice Line who told me that the government website was wrong and that "supported permitted work" could be done indefinitely. Great!
I then phoned my local JobCentrePlus who told me that the rules have recently changed and the 52 week limit does now apply. They also said that at the end of 52 weeks you can apply to be reassessed to be allowed to do another 52 weeks. I was told that this could be a lengthy process though.
bjj12
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Post by nickd on Jan 3, 2013 21:36:05 GMT 1
Yes I agree with you Floydpink,
Indeed this is one of the areas I am challenging over the application of law relating to Incapacity Benefit in what are in actual fact 'ESA' determinations. It's a complicated challenge but essentially they subject you to a requirement in so far as the completion of an ESA form is required and then compel you to be assessed under the Work Capability Assessment (both of which relate to the ESA rules) before they have made a formal decision over whether to terminate the incapacity award and prior to deciding on the commencement of an ESA award.
It's what's known as a 'supersession' and I'm challenging the validity of it in law.
It's a case which involves many other factors and that's why I'm particularly interested in all the comments on this thread.
So many thanks everyone for your contributions.
Regards
Nick
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Post by gmac9i on Jan 12, 2013 20:03:29 GMT 1
Hi Nick. Great post. I need your help, my wife suffers from depression and anxiety and has been on IB for the last 8 years. Following aros she has been placed in esa working category. On her very best days cant cope with people and on her worst well you can imagine. I was told by the job centre that cos I work that in 12 months her money will just stop. I earn enough so that she would be entitled to absolutely nothing. With no prospects of her recovering that means no income for the rest of her life. This has made her be at her lowest for some time, I really worry for her.
Does she need to appeal to be in the support group?
.help Gary
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Post by nickd on Jan 12, 2013 21:12:08 GMT 1
Hi Gary, Many thanks. Unfortunately, it sounds have if your income places you above the threshold for income based Employment & Support Allowance and therefore your wife will not qualify for more than 12 months of entitlement as she is in the Work Related Activity Group. The only way around this is to see if she might qualify for the Support Group (where the one year cap does not apply). You can find out more about the qualifying conditions here: mylegal.proboards.com/index.cgi?action=display&board=frontline&thread=724&page=1#1995Have a good look at them. By the sound of it the most likely qualifying descriptor will be this one: 13. Coping with social engagement, due to cognitive impairment or mental disorder. "Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual."Remember that socialising is not just mixing with trusted friends and family, it is socialising in its true sense which requires a degree of contact with those who your wife has had no previous contact with in a setting where she is unsupported and on her own. The kind of question you need to ask is how would she cope with say going out on her own and chatting to people she has never met before? There are other descriptors which may be equally relevant. It probably is best to appeal the Work Related Activity 'conversion' decision even if it is past the one month time limit. Can you get a welfare benefit specialist to help you in your area at CAB or a law centre? They know how to advise you on arguing the case. Let me know what you think and how you get on? Regards Nick |
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Post by gmac9i on Jan 12, 2013 22:27:56 GMT 1
Nick, she barely gets out of bed and hates all forms of socialising. All this was put on her forms and the doctor at the interview understood this. I cant understand hoW she has not been placed in the support group, I think their hoping she won't appeal. Nothings changed since she was put on IB.She also gets DLA.
Gary
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Post by gmac9i on Jan 12, 2013 22:29:40 GMT 1
P.S cab helped with the forms, I thought it was watertight
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Post by nickd on Jan 12, 2013 23:00:09 GMT 1
Hi Gary
Find out which WRAG descriptors were applied by asking DWP/ATOS for a copy of the ESA85 medical report. They are bound to have applied social interaction but probably only at 9 points with another descriptor. The problem with the form is that it isn't geared towards answers in the support group just vaguely relating to WRAG.
Was it a specialist who helped? You should definitely consider an appeal as on the basis of what you say, your wife is definitely eligible for the support group.
The DWP do seem to be almost by default downgrading awards which is why I'm challenging the conversion process as there is no regulatory scope for getting medical evidence before the Atos examination.
Regards
Nick
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Post by gmac9i on Jan 12, 2013 23:06:39 GMT 1
Thanks Nick. Ill phone for a copy of the report and make an appointment with cab to fill in the appeal form. She only got the letter on thursday so plenty of time til the month is up. Ill kee you posted.
Great work your doing by the way
Gary
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Post by nickd on Jan 12, 2013 23:51:57 GMT 1
Gary, here's an answer I resurrected from a similar post to another member on the same issue over completion of GL24 in a support group case. It'll need adapting to suit your wife's case:
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Post by floydpink on Jan 31, 2013 14:49:01 GMT 1
hi nick. any thoughts on the PM i sent?
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Post by nickd on Jan 31, 2013 21:34:37 GMT 1
Sorry, did I not answer it? Let me check :-)
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Post by nickd on Jan 31, 2013 21:48:59 GMT 1
floydpink - done :-)
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Post by floydpink on Feb 1, 2013 13:45:11 GMT 1
done? i meant the PM about migration letter. is there a PM for me somewhere?
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Post by nickd on Feb 1, 2013 18:46:00 GMT 1
Yes floydpink, if you check your message inbox - there should be one there which I send yesterday at 8.48 pm ? Let me know if you are having trouble accessing it?
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Post by floydpink on Feb 2, 2013 4:00:18 GMT 1
Yes floydpink, if you check your message inbox - there should be one there which I send yesterday at 8.48 pm ? Let me know if you are having trouble accessing it? yes, i am having trouble accessing messages (red face). help! |
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Post by qinteq on Feb 2, 2013 15:54:20 GMT 1
- red face not required .. .. I think ;D - I've never been able to access mine - the help pages www.proboards.com/forum-help-guide/private-messaging- are equally unhelpful, I suspect we should have been sent an 'activation code' as well as a 'username' - but we were not, so whilst we can post & read, many functions are quite properly denied to non-activated accounts |
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Post by qinteq on Feb 2, 2013 16:14:01 GMT 1
- red face not required .. .. I think ;D - I've never been able to access mine - the help pages www.proboards.com/forum-help-guide/private-messaging- are equally unhelpful, I suspect we should have been sent an 'activation code' as well as a 'username' - but we were not, so whilst we can post & read, many functions are quite properly denied to non-activated accounts - If you click on your profile - it will show a 'not activated' box - maybe nick can help you - click activate now, it will send a code to your e-mail addy - click the link in the e-mail and it will activate your account However - makes no difference to 'rights' to PM NOTE: I've read this - support.proboards.com/thread/365259/add-link-button-menu-alert?scrollTo=4045086&page=1 it doesn't help |
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Post by nickd on Feb 2, 2013 17:53:27 GMT 1
There are a few problems here and there folks which we do our best to help people out with but a lot of is down to the forum provider. I'm not sure whether activation makes any difference and to be honest messaging gets beyond me at times! However we are in the process of an upgrade, work is going on as we speak and hopefully that will improve things for you. I've had a preview and it certainly looks much better.
Will be better up an announcement over what you need to do as it requires you to upgrade your membership (should be really easy) so bear with it. I've communicated with a fair number of members via the message facility so must work for some.
Like I say hopefully the upgrade will improve things :-)
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Post by floydpink on Feb 3, 2013 14:52:11 GMT 1
re: accessing PMs. this worked for me. log in. go to profile. check whether account is activated. if not, click activate and you'll arrive at an empty activation box. choose the email a new activation key option. go to email and click on the link (the longer blue line of text and numbers, symbols). this will take you to the activation box with the key already inserted. click to activate.
go to mylegal home page,, scroll down to bottom of page (but, above the twitter box) where there is a box called 'info center', within this box is a subsection entitled 'forum statistics'. on the right of this box you will find the phrase 'your personal messages' and beside it number(s) indicating how many PMs you have. click on the number itself and this will open your PM inbox. hope this helps.
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Post by qinteq on Feb 4, 2013 0:28:48 GMT 1
Does this help ?  |
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